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[2026] NSWSC 843
Supreme Court of NSW
2026-07-16
Bennett J
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Spearpoint Solutions & Technology Limited v Gentex Corporation [2026] NSWSC 843
Hearing dates: 06 July 2026
Date of orders: 16 July 2026
Decision date: 16 July 2026
Jurisdiction: Equity - Duty List
Before: Bennett J
Decision: Interlocutory injunction made, see [89].
Catchwords: EQUITY — Equitable remedies — Injunctions — Interlocutory injunction — Plaintiff alleges in proceedings there is binding contract between plaintiff and defendant — Claim of binding contract principally based on a letter sent by defendant to plaintiff in October 2024 appointing plaintiff as exclusive distributor of certain products of defendant in Australia and New Zealand until 31 December 2027 — Defendant emailed plaintiff in January 2025 to say it is withdrawing exclusivity — Defendant appears to otherwise deny binding contract — Plaintiff has been sole distributor of relevant products for defendant in Australia and New Zealand from 2012 to 2025, including for a period after defendant purported to unilaterally withdraw exclusivity — Where defendant has taken steps to enter into market itself with Australian subsidiary — Defendant concedes serious question to be tried — Whether balance of convenience favours interlocutory injunction until certain claims are determined — Where certain claims to be determined in Expedition List — Where defendant has proffered various undertakings in alternative to injunctive relief — Where plaintiff and defendant have hitherto had long standing arrangements in relation to distribution of defendant’s products
Original judgment source is linked above.
Cases Cited: Darlinghurst Public School Parent and Citizens Association v Department of Education [2026] NSWSC 780
May v Walker [2023] NSWSC 1628
Soyo Investment Holding Pty Ltd v AL Brands Management Group Pty Ltd [2025] NSWSC 246
Category: Procedural rulings
Parties: Spearpoint Solutions & Technology Limited (Plaintiff)
Gentex Corporation (Defendant)
Representation: Counsel:
A R Langshaw (Plaintiff)
B Michael (Defendant)
Solicitors:
Gadens (Plaintiff)
MinterEllison (Defendant)
File Number(s): 2026/00222555
Publication restriction: Nil
By Notice of Motion filed in Court on 25 June 2026 (Motion), the plaintiff, Spearpoint Solutions & Technology Pty Limited (Spearpoint), seeks interlocutory injunctive relief, including to restrain the defendant, Gentex Corporation (Gentex), from appointing, supplying or representing that there is another distributor within the Australian and New Zealand markets of what are known as “Ground Systems”, pending the expedited determination of certain claims in this proceeding. Spearpoint explained that Ground Systems are ballistic and bump helmets and associated accessories used by ground-based defence and emergency services personnel that are manufactured and supplied by Gentex.
The proceedings have been fixed for an expedited final hearing on an estimate of 3 days before Parker J in the Expedition List commencing on 21 September 2026, in about two and a half months’ time.
The Motion was heard by me, sitting as the Duty Judge for the Equity Division on 6 July 2026. Mr A Langshaw of counsel appeared for the plaintiff and the applicant on the Motion. Mr B Michael of counsel appeared for the defendant and the respondent on the Motion. Each party made oral and written submissions, and handed up proposed Short Minutes of Order at the hearing.
I record my thanks to and gratitude for counsel, and their respective instructing solicitors, for their helpful oral and written submissions on this well-prepared application, noting especially the urgent circumstances and fast pace with which the parties’ legal representatives prepared the relevant materials.
I have sought to determine the Motion as expeditiously as possible, having regard to the fact there is a final hearing imminent and so the parties can have certainty in the short-term arrangements between themselves and to the wider market in which they operate. That need for certainty was employed by both parties in justifying their respective positions.
At the hearing before me on 6 July 2026, the dispute between the parties had narrowed somewhat. The defendant had proffered various undertakings without admissions. As will be clarified a little more below, three of the undertakings proffered by Gentex materially overlap with three of the orders proposed by Spearpoint to resolve in the Motion. Spearpoint was prepared to accept those three undertakings as sufficient to deal with the issues sought to be addressed in paragraphs 1(a), (b), and (c) of the proposed Short Minutes of Order handed up by Spearpoint at the hearing. This left for the determination by the Court the issue of whether the Court should make the order proposed in paragraph 1(d) of Spearpoint’s proposed Short Minutes of Order, which is in the following terms (the Restraint Order):
On the plaintiff by its counsel giving the usual undertaking as to damages, order that, until final determination of the Expedited Claims referred to in the orders of Parker J made on 6 June 2026, the dismissal or discontinuance of the proceeding or further order of the Court, and except as otherwise agreed in writing between the parties, the defendant:
…
d. be restrained, by itself, its servants or agents, from:
i. appointing any person or entity except for the plaintiff as its representative to distribute Ground Systems within Australia and New Zealand;
ii. supplying or distributing Ground Systems, or causing Ground Systems to be supplied or distributed, within Australia or New Zealand to any person or entity except for the plaintiff; and
iii. making any representation to any person or entity that it has appointed any person or entity except for the plaintiff as its representative to distribute Ground Systems within Australia and New Zealand.
Spearpoint relied upon two affidavits by Joanne Moss, the solicitor on the record for Spearpoint, affirmed on 22 June 2026 and 4 July 2026. The affidavits also came with various documents, which were all tendered without objection.
Gentex relied upon affidavit by Rebecca Bedford, the solicitor on the record for Gentex, together with an exhibit to that affidavit (RB-3). There were a few objections on which I had to rule on in respect of the affidavit material but those were quickly dealt with. I should note that each of the affidavits were made on information and belief based on information from persons who were employees and executives of Spearpoint and Gentex.
Gentex is a company based in Pennsylvania, the United States of America. In Ms Bedford’s affidavit and in Gentex’s submissions, Gentex is described as a company which manufactures, among other products, “head borne protection, communication and situational awareness solutions for land operations” (as Mr Langshaw colourfully described it, “effectively, helmets for soldiers” (but also other personnel like police officers and emergency services)). It is these helmets and associated accessories which are referred to as “Ground Systems” for the purposes of this dispute. I was told that the “Ground” in Ground Systems distinguishes them from “Air Systems” which are used by aviation air crews.
Spearpoint is an Australian company which delivers “technology, integrated systems and solutions to defence, national security agencies and industry partners” and “sources, supplies and supports advanced defence technology and products from legal manufacturers”.
The relationship between Spearpoint and Gentex is that Spearpoint has historically been a distributor of Ground Systems for Gentex in Australia and New Zealand. There is no dispute that between 2012 and 2025, Spearpoint was the only entity authorised by Gentex to distribute Ground Systems to “end users” (ie, those agencies or organisations who would use the Ground Systems distributed by Spearpoint on Gentex’s behalf) in Australia and New Zealand.
Gentex wrote various letters from 2012 onwards to various end-users stating that Spearpoint was the exclusive distributor for Gentex’s Ground Systems. It is not necessary to detail that correspondence.
Critical to the substantive dispute between the parties is a letter from Gentex to Spearpoint dated 10 October 2024 (October 2024 letter). In that letter, Gentex stated it was “pleased to confirm its ongoing partnership with [Spearpoint], who are appointed as our [Gentex’s] exclusive representatives for Gentex Ground Systems to the Australian and New Zealand markets”. The end of the letter also stated “This appointment is effective from the date above and expires on December 31, 2027”.
On 16 January 2025, Tom Short, the “Vice President, Ground Systems” at Gentex, sent an email to Daniel Skinner, the Managing Director of Spearpoint (January 2025 email). In that email, Mr Short wrote “Given your recent organizational changes, we must withdraw the attached letter of exclusivity dated October 10, 2024.” Mr Short also wrote that Gentex was “open to continuing our relationship with Spearpoint on a non-exclusive basis as we evaluate our options moving forward”. This was described by Spearpoint as a “unilateral” revocation.
Following the January 2025 email, Spearpoint continued to place purchase orders for the supply of Ground Systems with Gentex, and Gentex continued to fulfil those purchase orders, subject to standard Terms and Conditions on its website. Spearpoint in oral submissions described this state of affairs as “effectively a continuance of business as usual”.
Things seem to have changed this year.
In about February 2026, Mr Skinner apparently identified for the first time when visiting Gentex’s “Find a Gentex Distributor” webpage that a subsidiary of Gentex, Gentex Australia Pty Ltd (Gentex Australia), was represented as a distributor of Ground Systems and that Spearpoint had been removed as a distributor.
Spearpoint also says that Gentex refused to fulfil five specific purchase orders. Orders requiring Gentex to fulfil those specific purchase orders were sought in the Motion but in light of Gentex’s proffered undertakings, it is not necessary to delve further into that correspondence.
Spearpoint’s evidence suggests that someone from Gentex Australia had contacted one of Spearpoint’s customers/end-users in New Zealand by email and suggested to that customer that future orders for Ground Systems should be placed directly with Gentex Australia. Spearpoint became aware of that email on about 20 May 2026 (the 20 May 2026 email). However, apart from that one email, Spearpoint does not appear to be aware of any other business development activities that have been or are being undertaken by Gentex Australia in relation to the distribution of Ground Systems in Australia and New Zealand.
On 26 February 2026, Mr Skinner emailed Mr Short. Amongst other matters, Mr Skinner mentioned the removal from Gentex’s website of Spearpoint as a distributor of Ground Systems in Australia and New Zealand. Mr Skinner and Mr Short exchanged further emails. On 17 April 2026, Mr Short emailed Mr Skinner and reiterated that Gentex is “moving forward with [its] intent to do business in Australia and New Zealand through [its] Gentex Australia business entity”. Mr Short also said to Mr Skinner in this email:
“I know you don’t want to acknowledge it, but again I will point you to our 15 January 2025 where we withdrew our unilateral letter of exclusivity to Spearpoint. Beyond that I am not sure what agreement you are referring to.”
The proceedings were commenced by Summons on 29 May 2026. On 5 June 2026, Hammerschlag CJ in Eq entered the proceedings into the Expedition List and ordered the matter to proceed by way of pleadings.
A Statement of Claim was filed by Spearpoint on 10 June 2026. That has been superseded by an Amended Statement of Claim filed 21 June 2026 (ASOC).
It is the October 2024 letter and the January 2025 email (and events subsequent to that letter) which are central to these proceedings.
Spearpoint contends in the ASOC and in submissions on the Motion that the October 2024 letter has contractual effect. Spearpoint seeks, amongst other relief, a declaration that there is a valid and binding contract between it and Gentex. In relation to the contract alleged, based on the declaratory relief sought in the ASOC, Spearpoint contends the contract has, in substance, the following terms:
Gentex will not appoint anyone other than Spearpoint to act as the distributor of Ground Systems in Australia and New Zealand.
Gentex will provide to Spearpoint its applicable price list for Ground Systems to Spearpoint; and
Gentex will supply Ground Systems to Spearpoint within a reasonable time of its receipt of a purchase order from Spearpoint at the prices in the applicable price list and otherwise on Gentex’s standard terms and conditions of sale.
Both in its pleadings and in submissions on the Motion, Spearpoint accepts that even the contract they allege would only remain on foot until 31 December 2027, given the terms of the October 2024 letter.
Spearpoint seeks declaratory relief as to the terms of the alleged contract summarised above and seeks orders effectively enforcing the alleged contract. In particular, Spearpoint seeks orders:
restraining Gentex from appointing other distributors of Ground Systems in Australia and New Zealand, or making representations to that effect;
requiring Gentex to provide an updated price list for Ground Systems to Spearpoint within a reasonable time of its adoption by Gentex; and
requiring Gentex to supply Ground Systems to Spearpoint within a reasonable time of receipt of purchase orders from Spearpoint at the prices in the applicable price list and otherwise on Gentex’s standard terms and conditions of sale.
As already outlined, the final hearing for this matter is listed to commence on 21 September 2026. It concerns Spearpoint’s claim for declaratory relief and injunctive relief of the kind summarised above.
I note that there is also a claim for damages in the ASOC. However, that claim is not part of the “Expedited Claims” (as defined in the orders of Parker J on 26 June 2026) which were ordered to be heard separately.
No Defence had been filed yet by Gentex as at the time of the hearing. Gentex was ordered to file its Defence by 10 July 2026.
The Motion was filed in Court on 25 June 2026. It is unnecessary for present purposes to detail the lead-up to the hearing of the Motion.
As I stated earlier, Spearpoint sought orders in addition to the Restraint Order set out above. In advance of the hearing of the Motion, Gentex proffered various undertakings, which were set out in Gentex’s proposed Short Minutes of Order, which were also provided to the Court during the hearing. By reason of the undertaking proffered by Gentex as set out in its own proposed Short Minutes of Order at paragraphs 1(a), (b), and (c), which Spearpoint has accepted, the other issues which were originally in dispute as regards the Motion have now fallen away. I have made notations below in relation to those of Gentex’s undertakings which deal with the matters no longer in dispute in the Motion.
What remains in dispute is whether the Court:
should make the Restraint Order, or
simply note Gentex’s proffered undertakings as sufficient and otherwise dismiss the Motion.
Gentex has proffered undertakings at paragraphs 1(d)-(f) of its proposed Short Minutes of Order which effectively represent the “alternative” outcome if I did not make the Restraint Order. Given, I have already set out the terms of the Restraint Order above. I will also set out the proffered undertakings out below:
The Court notes that, on the plaintiff (Spearpoint) giving the usual undertaking as to damages and without admission or concession by either of the parties, the defendant (Gentex) undertakes to Spearpoint and to the Court that, until the earlier of the final determination of the Expedited Claims referred to in the orders of Parker J made on 26 June 2026, the dismissal or discontinuance of the proceeding or further order of the Court, except as otherwise agreed in writing between the parties:
…
(d) Gentex will not, by itself, its servants or agents, communicate to any person that they should not deal with Spearpoint, or should only deal with Gentex Australia Pty Ltd (Gentex Australia), in relation to Ground Systems; and
(e) Gentex will not, by itself, its servants or agents, make any request or direction to the following end users that they deal with Gentex Australia in relation to Ground Systems:
(i) ADA NZ;
(ii) Australian Department of Defence;
(iii) Victoria Police;
(iv) South Australia Police;
(v) Australian Federal Police;
(vi) Department of Foreign Affairs and Trade; and
(vii) New Zealand Defence Force;
(f) nothing in these undertakings prevents Gentex by itself, its servants or agents from the following:
(i) if an end user or customer requests a quote for or information about Ground Systems products, providing a quote and indicating that the supply of the product is through Gentex Australia;
(ii) if an end user or customer asks who they should deal with for Ground Systems, responding that the end user or customer can deal either with Spearpoint or Gentex Australia; and
(iii) general marketing and customer relations discussions and communications in the usual course of business in relation to Ground Systems; and
(iv) in the course of such communications and discussions in (iii) above, Gentex may communicate that a customer can place an order for Ground Systems with Gentex Australia, provided that at the same time Gentex also communicates that the customer may place an order with Spearpoint for such products.
There was no dispute as to the relevant principles applicable to the grant of an interlocutory injunction. Spearpoint’s submissions referred me to McGrath J’s summary of the applicable principles in May v Walker [2023] NSWSC 1628 (May v Walker) at [130]-[142], to which Gentex also made reference in its own submissions. I gratefully adopt his Honour’s summary but, for brevity’s sake, I will not restate those principles in full here.
The plaintiff has the onus of establishing that an interlocutory injunction should be made. There are two questions the Court must answer:
Has Spearpoint made out a prima facie case for relief, in the sense that if the evidence remains as it is there is a probability (in that there is a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending trial) that at the trial of the action the plaintiff will be held entitled to relief? Put another way, is there a serious question to be tried?
Would the inconvenience or injury which Spearpoint would be likely to suffer if an injunction were refused outweigh the injury which Gentex would suffer if an injunction were granted? Put another way, what is the balance of convenience?
The onus is on Spearpoint to establish the balance of convenience.
The stronger Spearpoint’s case for final relief is, the less is required to tip the balance of convenience in its favour. Conversely, the weaker Spearpoint’s final case for relief is, the more is required to tip the balance of convenience in its favour (see Darlinghurst Public School Parent and Citizens Association v Department of Education [2026] NSWSC 780 at [69]-[71] per McGrath J).
The factors to be taken into account will vary with the circumstances of each case. Common considerations include the strength of a plaintiff’s case (as already adverted to above), the adequacy of damages, the possibility of alternative remedies, delay, the strength of any grounds of defence, the adequacy of a plaintiff’s undertaking as to damages and any undertakings a defendant is prepared to give: May v Walker at [137]-[139]; Soyo Investment Holding Pty Ltd v AL Brands Management Group Pty Ltd [2025] NSWSC 246 at [28] per Peden J.
Spearpoint submits that the balance of convenience favours granting the interlocutory injunctive relief and making the Restraint Order.
In relation to the issues raised by the proposed Restraint Order, Spearpoint acknowledges the undertakings that have been proffered by Gentex, however says that those undertakings are insufficient to protect Spearpoint’s position pending the final determination of the proceedings, or indeed to address the parties shared concern about the creation of uncertainty in the market to their common detriment.
I accept that that a need for certainty, on the part of both parties, is a central issue I ought to have regard to in making any determination.
Spearpoint summarised the competing issues between the parties in the following terms (PWS [6](a) and (b)):
6. The competing issue between the parties in substance now resolves to whether either:
a. Gentex should be restrained from appointing, supplying or representing that there is another distributor of Ground within the Australian and New Zealand markets pending final determination of the proceedings, as sought by Spearpoint; or
b. the Court should instead accept the proffered undertakings that, whilst Gentex’s wholly owned subsidiary (Gentex Australia Pty Ltd) will be permitted to be active in that market for Ground Systems, Gentex will be restrained from, variously:
i. telling people not to deal with Spearpoint or to deal only with Gentex Australia; or
ii. making any request or direction to identified customers that they deal with Gentex Australia,
but will otherwise be permitted to:
iii. provide quotes and indicate availability of supply through Gentex Australia if requested by a customer;
iv. where asked by a customer who to deal with, indicate that they can deal with either Spearpoint or Gentex Australia; and
v. undertake what are described as “general marketing and customer relations discussions” in the usual course of business, limited only by requiring an indication that supply is available through both Gentex Australia and Spearpoint.
Spearpoint’s core concern is that, if it is unable to continue to represent that it is the exclusive distributor of Ground Systems, current customers and other government agencies will cease placing orders and it will have significantly reduced prospects of successfully tendering for further contracts to supply Ground Systems (see TR P16 L50 to P17 L1-8). Spearpoint says there is thus a real risk that the goodwill and custom that Spearpoint has generated over the past 14 years may be lost. Spearpoint submits that this goodwill is to the benefit of both Spearpoint and Gentex, as the manufacturer and ultimate supplier of Ground Systems. Spearpoint says there is a risk to the goodwill generated as the practical effect of there being no exclusive distributor will likely be that customers will cease placing orders for Ground Systems with Spearpoint altogether until at least the conclusion of this proceeding. As will be seen, I accept this submission.
On the issue of any loss of goodwill, Spearpoint contends that this loss would not be capable of adequate compensation by way of an order for damages. Spearpoint submits the loss of potential future orders or lack of success in future tenders arising from the destruction of Spearpoint’s extant goodwill may in effect frustrate the final declaratory and injunctive relief it seeks, and would also be very difficult to prove and quantify. Spearpoint submits it would not be just, in all of the circumstances, to confine Spearpoint to a remedy in damages if it is successful in the proceedings.
Gentex does not accept that Spearpoint will suffer irreparable harm if needed to purchase Ground Systems from Gentex Australia, rather than Gentex, until the final determination. In making this submission, Gentex points to pricing differences, however, acknowledges that this is not the major issue for Spearpoint. Gentex recognises that the real concern for Spearpoint is the “injury” it would be likely to suffer if the orders concerning exclusively are not made.
Gentex also refers to Spearpoint’s concerns about potential reduced prospects in relation to tenders, and says this concern in premature, and that there is no evidence of any imminent tenders for which Spearpoint would need to make a representation that it is the exclusive distributor. If such a tender were to arise, Gentex says it would consider whether it would authorise exclusivity in relation to that particular tender, and if not given, at that point it would be open to Spearpoint to seek an injunction.
However, I understand from Spearpoint’s submissions outlined above that it is the broader issue of the lack of exclusivity, and the associated uncertainty, that is of central concern to Spearpoint. I infer that having to approach Gentex on a tender-by-tender basis, and only seek an injunction at some later point, is beside the point.
More generally however, I accept the submission of Spearpoint that damages would not be an adequate remedy, and that this consideration favours the granting of the injunctive relief by way of the Restraint Order. In these proceedings, the focus has not been on the narrower issues, such as whether Spearpoint can represent exclusivity when making a particular tender (which may be a circumstance where damages might well be an adequate remedy), but rather, going to the larger picture of goodwill. I accept the submission that any destruction or other compromise of the goodwill and custom that Spearpoint has generated over the past 14 years may not be capable of adequate compensation by way of an order for damages, and as part of this, that the harm caused would be difficult to prove and quantify.
Spearpoint submits that the lack of certainty, in a broader sense, is a concern to both parties. Spearpoint notes the concern of Gentex as to the present uncertainty as to whether customers should continue to deal with Spearpoint or Gentex Australia is damaging Gentex’s own goodwill as the manufacturer and ultimate supplier of Ground Systems.
Spearpoint contends that the undertaking proffered by Gentex contemplates that both Spearpoint and Gentex Australia remain active in the market until the final determination of the proceedings, with the undertaking offered by Gentex as “guardrails”. Spearpoint says that those undertakings would only serve to perpetuate the present state of uncertainty and thus continue to imperil the parties’ common goodwill in the market. As will be seen, I accept that submission.
In addressing the major claim of Spearpoint, being the uncertainty created if it is not the exclusive distributor, Gentex, like Spearpoint, accepts that uncertainty impacts both parties, however states that the undertaking it offers will address that uncertainty.
I am of the view that, on the agreed issue of current uncertainty, the balance of convenience weights in favour of making the Restraint Order. I do not accept that the undertakings proffered by Gentex will give the parties, end users, customers, or other third parties certainty or otherwise dispel confusion. It would seem to me that there are still shades of grey in the undertakings, and in particular, uncertainty as to what it means for end users or customers when making choices between options and being provided with information going forward.
In my view, it will be the maintenance of (or correction back to) the longer-term status quo, that has been in place for many years now, that will bring some clarity and certainty to the current circumstances. As part of this, I consider that the maintained exclusivity arrangement has less capacity to confuse either the parties, end users, or customers than the proffered undertaking by Gentex.
In forming this view, I have taken into account that Gentex have contacted at least one customer (ie the 20 May 2026 email), and at the very least, that Gentex would be called upon to contact that customer and clarify the position should injunctive relief be granted in these proceedings.
Spearpoint contends that Gentex has identified little real or substantive prejudice that it will suffer if the Restraint Order is made.
Reference is made by Spearpoint to Gentex’s general evidence about its “existing business development activities” and “loss of commercial momentum”. As far as Spearpoint seems to know, the principal evidence as to what those general activities actually involve is what has been relayed to Spearpoint by one of its customers: that a representative of Gentex Australia emailed that customer directing them to place future orders for Ground Systems with Gentex Australia and not Spearpoint. (It will be noted this type of activity would be precluded on Gentex’s proffered undertakings.)
Gentex has also asserted to Spearpoint that it has booked a stall at an upcoming “exposition” to market Ground Systems. From Gentex’s written submissions, I understand this “exposition” to be the “Land Forces Expedition”, which Gentex suggests will take place in October 2026. In meeting that potential prejudice, Spearpoint has indicated that it is willing to take over that booking if it occurs during the currency of any interlocutory orders made by this Court. I accept that the offer by Spearpoint will meet at least some of the practical difficulty associated with this issue.
Spearpoint appears to acknowledge that a part of the risk to Gentex is the delay in Gentex Australia’s entry into the market.
Gentex contends that the Restraint Order will cause disruption to Gentex’s steps to bring Gentex Australia into the market, noting that the plans to do this have been long foreshadowed to Spearpoint. Gentex gives more detail as to what it hopes to achieve, and this includes that it would not be able to progress an important part of their planned customer engagement and business development activity, and that there will be impacts on marketing timing, regional rollouts, product support planning, and imminent sales activity.
Gentex says that any delay in this will risk causing confusion and uncertainty for customers about whether to deal with Spearpoint or Gentex Australia. Gentex is concerned that this will likely have reputational issues for Gentex and damage the credibility of Gentex Australia as an operational customer facing entity.
However, to this Spearpoint submits that the delay will be short, noting that the hearing of the matter, within the Expedition List, will be in 2 ½ months time, and that that short delay is substantially outweighed by the risk of the loss of goodwill developed over the past 14 years to all parties’ potential detriment.
Against this, Gentex submits that the imposition of the Restraint Order would also cause potential damage to customer relations and reputation stemming from confusion (or “uncertainty”, as Spearpoint puts it) in the market as to whether customers should deal with Spearpoint of Gentex.
In support of the undertaking proposed by Gentex, Gentex states that it would be restricted from directing or requesting customers place orders only with Gentex Australia and to require Gentex to indicate that customers can purchase either from Gentex Australia or Spearpoint. Gentex says that this regime would provide certainty and protect both parties, and that Spearpoint would be protected from the threat of customers being told not to deal with them, which was the circumstance (per the 20 May 2026 email) that prompted the Motion. However, the regime would still allow Gentex Australia to continue to engage and develop its presence in Australia. Gentex says that this “disruption” cannot readily be quantified in damages.
As will be seen, I do not consider that in Gentex being obliged to tell customers about the choice customers have as between Gentex Australia and Spearpoint will be the end of uncertainty and confusion. At the very least, customers are then placed in a decision-making quandary, and the undertakings do not deal with what further information customers are to be provided should information or guidance be sought. There is no new decision-making quandary for customers associated with the ongoing exclusivity status position.
At a more direct financial level, however, in its written submissions, and orally, Spearpoint appear to recognise that, should Gentex be successful in the substantive proceedings, then there will have been financial loss to it, by virtue of its delayed participation in the market. Of this, Spearpoint submits that Gentex is protected against this by Spearpoint’s own undertaking as to damages.
Given the nature of this application, Spearpoint says that it self-evidently intends to remain active in the market for Ground Systems pending the final determination of the proceeding, and to that end intends to continue to procure orders by customers for, and seek supply from, Gentex, of Ground Systems in Gentex’s standard commercial terms and pricing.
Given this, Spearpoint says that Gentex and Gentex Australia will each have the benefit of an undertaking as to damages should they contend that any such orders would, but for any interlocutory injunction, have been placed with Gentex Australia and not Spearpoint, and therefore generated a higher profit margin for Gentex. I accept that this is an answer to the concerns raised by Gentex.
On the issue of delay more broadly, I accept the submission of Gentex that it would suffer from a delay of its entry into the market. In this, I consider that recognition of this prejudice, by itself, would weigh against the making of the Restraint Order.
However, as Spearpoint points out, the final hearing is in the Expedition List and will be heard in 2 and a half months’ time. Whilst it cannot be known when the final decision will be made after the hearing, I am of the view that, by virtue of being in the Expedition List, that judgment will be given in those proceedings sooner than for any matter that is heard outside of the Expedition List.
In considering this issue, I also have regard to the evidence which discloses that, even if Spearpoint is successful in the final hearing, that it will only retain exclusivity until December 2027, some 17 months from this application. From this I understand that the maintenance of exclusivity for the months before the final determination of the matter is critical for Spearpoint given the relatively short period of time the putative contract has left.
Whilst I recognise the impact of the delay on Gentex in entering the market, I weigh this against the relatively short amount there will be between the imposition of any injunction, and the final determination of the matter. I am of the view that the injury to Spearpoint if it succeeds, and where there has been no Restraint Order, is greater than the injury to Gentex if it succeeds, and there was an order. For Spearpoint there will only be a very limited amount of time to enjoy the benefit of a contact, and that enjoyment may be compromised by having lost exclusivity for the intervening months. For Gentex, whilst ready to enter into the market, it will have had that entry delayed by months. In this, I am of the view that when balancing the issue of delay for Gentex with the short timeline for the hearing of the substantive matter, it weighs in favour of making the Restraint Order.
As already stated, Gentex claim there has been gross delay in seeking the relief it does, and relies on the January 2025 email, and more recent events (at dates in February, April, and May 2026) in support of this submission.
For its part, Spearpoint says that the trigger event was as recent as the 20 May 2026 email, and that the Court’s consideration of the delay issue ought to be considered in that light.
In this, Spearpoint says that the real period of delay occasioned by Spearpoint, is relatively confined. The evidence discloses that notwithstanding the terms of the January 2025 email, Spearpoint first learnt that Gentex Australia was actively seeking to redirect orders from one of its customers on 20 May 2026 (per the 20 May 2026 email). Spearpoint says it has moved as quickly as could reasonably be expected since that time.
Spearpoint also says that it only learnt that Gentex Australia was being held out as a distributor on Gentex’s website in February 2026. Prior to that time, Spearpoint say there was no evidence that Gentex had sought to act upon its earlier purported unilateral revocation of Spearpoint’s exclusive distributorship.
In assessing the balance of convenience, Spearpoint submits that the critical factor is not the bare fact of delay, but any prejudice that has been occasioned to Gentex, or third parties (including Gentex Australia), by reason of that delay. In that regard, Spearpoint contends that it is unclear what Gentex or its subsidiary have in fact done by way of seeking to enter the relevant market, beyond a single instance of seeking to redirect orders for Ground Systems. There is no evidence, for example, that Gentex Australia has submitted any tenders or procured any orders, much less that it has done so in reliance of any delay by Spearpoint.
On the issue of prejudice and detriment occasioned by any delay, Gentex says that had the proceedings been commenced promptly, then the position would have been resolved by now and Gentex could have made appropriate plans to introduce Gentex Australia to the market in such a way that did not cause disruption and confusion to customers. Gentex says it signalled what it intended to do by at least December 2025, and that it would be unreasonable to redirect that now.
Having regard to these submissions, and the evidence that the parties have cited to support their positions, I am of the view that any real delay by Spearpoint was limited, and accept that following the 20 May 2026 email, Spearpoint acted as quickly as could be reasonably expected. I do not consider that this factor weights against Spearpoint when I come to consider the balance of convenience. In coming to this view, whilst I have accepted that Gentex indicated its intentions as early as December 2025, however I also accept the significance of the 20 May 2026 email, being what seems to be the first piece of evidence that Gentex was actually acting on that intention.
Spearpoint submits that the balance of convenience weighs strongly in favour of the Court making the Restraint Order, rather than accepting the more complex and limited interlocutory undertakings proffered by Gentex.
On the issue of the strength of Spearpoint’s case, Gentex says it is “weak at best”. Gentex says that Spearpoint rely on the October 2024 letter being a contract, and Gentex says it bears no resemblance to a contract. Gentex says the October 2024 letter was a unilateral and gratuitous statement that Spearpoint is appointed as Gentex’s exclusive distributor, stating when that would end. Gentex says no promise was made by Gentex, and that there was no statement that the appointment was irrevocable. There were other problems also identified as a part of Spearpoint’s claim for final relief.
I do not accept that Spearpoint’s case is weak and consider that the issue of whether a contract for exclusivity existed to be reasonably open. In fairness to Gentex, its description of what appears on the face of the October 2024 letter, as summarised in the preceding paragraph, is not inaccurate. However, while I am of the view there will be some level of complication in relation to evidence and the law on this issue, I do not think the case can be dismissed in the context of these proceedings as being weak (or at least, so weak that the balance of convenience would otherwise not justify an injunction). In the ASOC itself, the terms of the purported contract between the parties are pleaded as partly express and partly implied. On Spearpoint’s case, the October 2024 letter forms only one piece of the alleged contractual regime between the parties, such that just because it may be difficult to rely solely on the October 2024 letter to ground a contract, that is not the end of it in terms of assessing the strength of Spearpoint’s case at this stage. As to Gentex’s contention that there was no consideration flowing each way (such that Spearpoint’s case was “borderline liable to be struck out”: TR P26 L48-49), it is difficult to assess that claim given the terms of any dispute as to consideration have not yet been cleanly defined. Whilst it is true the October 2024 letter does not refer in terms to any promises made by Spearpoint to Gentex, it may be that, as Spearpoint submitted in its oral reply submissions, there are other sources of consideration flowing from Spearpoint to Gentex. Without determining the correctness of Spearpoint’s submission that “an absence of consideration is something that is required to be pleaded in advance” (though, the submission clearly has force), I do accept its submission that Spearpoint could respond to any questions raised by Gentex about consideration from Spearpoint. I do not consider the mere fact the October 2024 letter does not refer to any promises by Spearpoint means the case is weak, or so weak that Spearpoint’s onus on the balance of convenience is made more difficult.
Notwithstanding this, I record that even if I had accepted the submission that Spearpoint’s case was weak, I would still have determined that the balance of convenience weighed in favour of granting the injunction, given the weight I have given the countervailing factors that I have already discussed.
To the extent that Gentex says that there may be damage to Gentex’s customer relations and reputation stemming from confusion (or “uncertainty”, as Spearpoint puts it), I am of the view that the certainty likely to flow from the granting of the injunction will assist with Gentex’s concerns.
Overall, as set out above, I have considered whether damages are an adequate remedy; the circumstances of uncertainty; the prejudice or harm that each of Spearpoint and Gentex may suffer should injunctive relief be granted, or not; together with the issue of any putative delay taken by Spearpoint to seek this injunction. Consequently, I am of the view these considerations weigh in favour of granting the injunction sought and making the Restraint Order. For the reasons already stated above, I am of the view that on balance, I ought to exercise the discretion of the Court and grant the injunction and make the Restraint Order.
Spearpoint was successful in its application for injunctive relief. Prayer 2 of Spearpoint’s Motion was for the costs of the Motion to be costs in the cause.
The parties did not make any substantive written or oral submissions in relation to what order I should make in relation to costs.
Given that Spearpoint does not seek an order for Gentex to pay its costs, but rather, seeks what I consider to be an order more favourable to Gentex, I propose to make the order sought, that the costs of the Motion to be costs in the cause.
For the reasons set out above, I make the following notation and orders:
The Court notes that on the plaintiff (Spearpoint) giving the usual undertaking as to damages and without admission or concession by either of the parties, the defendant (Gentex) undertakes to Spearpoint and to the Court that, until the earlier of the final determination of the Expedited Claims referred to in the orders of Parker J made on 26 June 2026, the dismissal or discontinuance of the proceeding, or further order of the Court, except as otherwise agreed in writing between the parties:
(a) Gentex will as soon as practicable, and in any event within 2 business days, provide on a confidential basis to Spearpoint a copy of its 2026 price list for ground systems head borne personal protection, communication and situational awareness solutions manufactured by Gentex (Ground Systems); (b) Gentex will fulfil the following purchase orders on the pricing set out in the 2026 price list and subject to the terms and conditions at the link “https://www.gentexcorp.com/terms-conditions/#terms-conditions-sale-us” (Sale Terms):
(i) PO-106711; (ii) PO-106722; (iii) PO-106724; (iv) PO-106732; and (v) PO-106723;
(c) whilst not being obligated to accept and fulfil any such purchase order, Gentex will in good faith consider accepting and fulfilling all further purchase orders submitted by Spearpoint for Ground Systems on the Sale Terms.
(a) appointing any person or entity except for Spearpoint as its representative to distribute Ground Systems within Australia and New Zealand; (b) supplying or distributing Ground Systems, or causing Ground Systems to be supplied or distributed, within Australia or New Zealand to any person or entity except for Spearpoint; and (c) making any representation to any person or entity that it has appointed any person or entity except for Spearpoint as its representative to distribute Ground Systems within Australia and New Zealand.
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Spearpoint Solutions & Technology Limited
Gentex Corporation